People v. Martinez

• Decision Date: 17 December 1985
• Docket Number: No. F002865,F002865
• Citation: 175 Cal.App.3d 881,221 Cal.Rptr. 258
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tito MARTINEZ, Defendant and Appellant.

Page 258

221 Cal.Rptr. 258

175 Cal.App.3d 881

The PEOPLE, Plaintiff and Respondent, v. Tito MARTINEZ, Defendant and Appellant.

No. F002865.

Court of Appeal, Fifth District, California.

Dec. 17, 1985.

As Modified Jan. 2, 1986.

Certified for Partial Publication ^*

Review Denied April 17, 1986.

[175 Cal.App.3d 885] Judith R. Cohen, San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., W. Scott Thorpe and David DeAlba, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

MARTIN, Associate Justice.

Defendant, Tito Martinez, and a codefendant, John Vela, were charged with robbery (Pen.Code, § 211). ¹ It was further alleged defendant had suffered a prior felony conviction for robbery within the meaning of sections 667 and 1192.7. During trial and outside the presence of the jury, defendant admitted the alleged prior robbery conviction. After trial, the jury found defendant guilty as charged. The trial court denied probation and sentenced defendant to state prison for the aggregate term of eight years. Defendant filed a timely notice of appeal.

STATEMENT OF FACTS

On March 28, 1983, at approximately 9:40 p.m., Theresa Flores and her cousin, Gina Dwyer, stopped at a Taco Bell restaurant on Niles Street at Mount Vernon in Bakersfield. Theresa and Gina were returning from a softball game and Theresa was still wearing her uniform. Theresa drove her 1978 Camaro into the Taco Bell lot and parked next to a Ford Thunderbird. The latter vehicle had backed into its parking space and had its headlights on. As Theresa pulled into the vacant parking space she noticed several people standing near the front of the Thunderbird.

After she parked her car, Theresa alighted and was suddenly approached by a man later identified as codefendant John Vela. Vela held a knife in his right hand, pointed it at Theresa's waist, and grabbed her purse with his left hand. Theresa screamed and released the purse. Vela then ran with the purse around the front of the Thunderbird, opened the passenger door and yelled, "Go, go." The Thunderbird sped away after Vela entered the car.

Meanwhile, Theresa ran toward the Thunderbird and read the license numbers off the rear license plate as the car passed by her. Theresa and her cousin immediately ran into the restaurant and asked the clerk to write down the license number and call the police.

At approximately 9:40 p.m., Kern County Sheriff's Deputy Robert Posey was dispatched to the Taco Bell. When Posey arrived a minute later, Theresa and her cousin gave him the license number and description of the car. Theresa and her cousin further advised Deputy Posey two young Mexican males were responsible. Posey immediately broadcast the information. Approximately three minutes after the broadcast Senior Deputy Sheriff Kenneth Eddy detained the same Ford Thunderbird at a Circle K market, approximately three and a half miles away from the Taco Bell. Officers transported Theresa and her cousin to the detention site. Both girls identified Vela as the culprit. Defendant was driving the vehicle when it was detained. Neither Theresa nor her cousin could identify him as the driver of the vehicle at the Taco Bell lot.

Officers found a paring knife on the floorboard of the Thunderbird and a folding knife in the locked glove compartment. However, they were unable to locate or recover the purse.

Defense

Defendant testified on his own behalf. On the evening of March 23, 1983, he was visiting his cousin, Julio Morales, in east Bakersfield. He left a few minutes past 9:30 p.m. to begin a long walk home. After defendant walked across Jefferson Park, a Ford Thunderbird pulled to the side of the road. John Vela, the brother of defendant's girlfriend, was driving the vehicle. Vela offered defendant a ride and defendant accepted. Vela then asked defendant to drive the car because Vela had been drinking. When defendant and Vela reached the Circle K market near Union and Columbus Avenues, defendant noticed a sheriff's car following them. Defendant assumed the deputy had seen Vela drinking a beer while the Thunderbird was in motion. The deputy stopped the Thunderbird just before it reached the market.

Defendant denied any knowledge of or participation in the robbery of Theresa Flores.

On cross-examination, the prosecutor asked defendant if he had been convicted

of a felony. Defendant testified he had previously been convicted of armed robbery. However, he also stated the incident was an unfortunate part of his history he truly regretted.

DISCUSSION

I. DID THE TRIAL COURT PREJUDICIALLY ERR BY DENYING DEFENDANT'S MOTION TO EXCLUDE EVIDENCE OF HIS PRIOR ROBBERY CONVICTION FOR IMPEACHMENT PURPOSES?

After the People rested their case-in-chief, the following exchange occurred:

"THE COURT: Let the record show we're in chambers with the defendant present outside the presence of any jurors. And your motions?

"MS. VOLLMER [defense counsel]: .... [p] Secondly, I would like to put my client, Mr. Martinez, on the stand. I am concerned that if the jury hears about this robbery, this prior robbery, that the prejudice is going to outweigh the probative value. So I would make a Beagle motion to exclude that, and in saying that, I would also state we would be willing to stipulate outside the presence of the jury to the prior as a part of the bifurcated proceeding. In other words, we would stipulate so the Court would determine that in fact this --Mr.--

"THE COURT: You would admit the prior is what you're saying?

"MS. VOLLMER: He would admit the prior, but this would be kept from the jury, essentially. That's what I'm proposing.

"THE COURT: Well--

"MS. VOLLMER: And my authority for that would be People versus Beagle. I think it's still good law, despite Prop. 8.

"MR. BRADSHAW [deputy district attorney]: Basically, I would rely on Prop. 8, your Honor, and 20F, which expressly states that priors, prior felony convictions may be used in any criminal proceeding without limitation for impeachment purposes. While the Supreme Court has not talked about retro--they have not really decided retroactivity and this sort of thing, we're not concerned with retroactivity in this case because it is subsequent to Prop. 8.

"THE COURT: All right. Your motion, Beagle motion is denied. The People may use the prior conviction of a felony, which apparently is violation of Section 211 of the Penal Code committed on or about or at least the conviction is on or about September 13, 1978, in Superior Court for the County of Kern. And the People may use that prior felony for impeachment purposes, providing they're prepared to prove it in the event of a denial."

In People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, the Supreme Court addressed the impact of Proposition 8 ² on impeachment with felony priors. The court stated:

"We shall hold that--always subject to the trial court's discretion under section 352--subdivision (f) authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty. On the other hand, subdivision (d), as well as due process, forbids the use of convictions of felonies which do not necessarily involve moral turpitude." (Id., at p. 306, 211 Cal.Rptr. 719, 696 P.2d 111.)

Applying these rules, the court found the trial court erroneously permitted defendant, charged with receiving stolen property, to be impeached with a prior for simple heroin possession. The court held the latter offense does not necessarily involve moral turpitude. Further, the Supreme Court held the trial court erroneously permitted defendant to be impeached with a prior for heroin possession for sale. While this offense necessarily involves moral turpitude, i.e., not dishonesty but the intent to corrupt others, the trial court erroneously concluded it had no discretion as to either prior. Finally, the court held under California Constitution, article VI, section 13 and People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, certiorari denied 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55, the errors were nonprejudicial.

The Supreme Court concluded the error in Castro was not prejudicial because the People's case was strong, defense witnesses provided exculpatory testimony, defendant herself volunteered she had been incarcerated at the California Rehabilitation Center and a women's prison before any attempt was made to impeach her with the priors, and the court instructed the jury to consider the priors only to determine the credibility of the witness. Upon a review of the entire record, the Supreme Court held it not reasonably probable a result more favorable to the defendant would have occurred absent the error.

In the instant case, the threshold question is satisfied. There can be no doubt robbery does involve moral turpitude, i.e., a readiness to do evil. All priors which necessarily involve dishonesty under the pre-Castro standards ipso facto involve moral turpitude under Castro. (People v. Parrish (1985) 170 Cal.App.3d 336, 349, 217 Cal.Rptr. 700, Rev. den. Nov. 14, 1985.)

However, the trial court erred by failing to exercise its Evidence Code section 352 discretion on the record in ruling upon the admissibility of the prior. We then must review the entire record to determine whether or not it was reasonably probable a result more favorable to defendant would have occurred in the event he had testified without impeachment by his prior felony conviction. (People v. Castro, supra, 38 Cal.3d at p. 319, 211 Cal.Rptr. 719, 696 P.2d 111.)

As noted above, Theresa Flores and her cousin, Gina Dwyer, stopped at the Taco Bell restaurant on Niles Street and Mount Vernon Avenue in Bakersfield on March 28, 1983, at approximately 9:40 p.m. Theresa drove her vehicle into the Taco Bell parking lot and parked next to a Ford Thunderbird. As Theresa entered the vacant parking space she noticed several people standing near the front of the...